Citizens For Amending Proposition L v. City of Pomona

In June 1993, appellant City of Pomona (Pomona) entered

into an agreement with non-party Regency Outdoor Advertising,

Inc. (Regency). Pursuant to that agreement, Regency erected

advertising billboards alongside several Pomona freeways.

Shortly thereafter, in November 1993, the citizens of Pomona

passed a ballot initiative, Proposition L (Prop. L), which

prohibited the construction of additional billboards within city

limits.

Pomona’s agreement with Regency expired by its terms in

June 2014. In July 2014, the Pomona city council adopted an

ordinance purporting to amend the agreement by extending it for

an additional 12-year term. Plaintiffs/Respondents Citizens for

Amending Proposition L (Citizens), Vernon Price, and J. Keith

Stephens (collectively, respondents) filed a petition for a writ of

mandate and complaint for declaratory relief, alleging that the

July 2014 “amendment” was in fact a new agreement for new

billboards enacted in violation of Prop. L. The trial court agreed

and granted the petition. It also awarded respondents attorney’s

fees pursuant to Code of Civil Procedure section 1021.5.1

In this appeal, Pomona challenges these rulings on a

variety of grounds. Procedurally, it argues that plaintiffs lack

standing and that Regency is an indispensable party to the

litigation. Substantively, it contends that the trial court erred in

concluding that the “amendment” was a new agreement and in

finding that Pomona violated a duty to comply with Prop. L.

Pomona also argues that plaintiffs failed to demonstrate an

entitlement to attorney’s fees. We affirm the trial court’s rulings.

Respondents’ motion for sanctions is denied.



1All further statutory references are to the Code of Civil

Procedure unless otherwise indicated.

3

FACTUAL BACKGROUND

I. 1993 Agreement

In November 1992, the Pomona city council adopted an

ordinance establishing regulations for “off-site outdoor

advertising structures,” commonly referred to as billboards. That

ordinance created limited “eligible display areas” in which new

billboards could be constructed. Those areas lay alongside three

freeways that passed through the city, state routes 57, 60, and

71. The ordinance also required any advertiser seeking to place

billboards in the eligible display areas to enter into a

development agreement with the city.

Almost immediately, advertising company Regency

negotiated a development agreement with Pomona in accordance

with the ordinance. The city council approved the agreement,

Development Agreement No. 93-001, by ordinance on May 24,

1993; it took effect 30 days later, on June 24, 1993.

Under the agreement, Pomona granted Regency the right

to erect 10 new billboards (“New Structures”) on properties

Regency owned in the eligible display areas. In exchange,

Regency agreed to various conditions, including the removal of 30

existing billboards (“Old Structures”) located elsewhere in the

city. Regency further agreed to pay Pomona various fees,

including one-time development and permitting fees totaling

$62,000, a $500 annual business license fee for each new

billboard face, and a $250 “posting fee every time a sign face is

changed.” Regency agreed to remove all of the New Structures

“on or before the last day” the agreement was in effect. It also

agreed to indemnify Pomona in the event that the validity of the

agreement was challenged, though the agreement gave Regency

the right to select counsel to do so.

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By its terms, the agreement was slated to expire “ten (10)

years from the earlier to occur of (i) the construction of all of the

New Structures, or (ii) twelve (12) months after the Effective

Date. . . .” The agreement provided, however, that it was to “be

automatically extended for a second ten (10) year term,” subject

to an increase in the fees Regency was obligated to pay, “unless

such term is otherwise terminated, modified or extended by

circumstances set forth in this Agreement or by mutual consent

of the parties.” The parties agree that the first 10-year term

ended on June 24, 2004, and that the agreement automatically

renewed for a second 10-year term scheduled to expire on June

24, 2014.

II. Proposition L

In November 1993, just months after Regency and Pomona

entered into their agreement, citizens of Pomona approved Prop.

L in a special municipal election. Prop. L, now codified at Pomona

Municipal Code section .503-K-K, provides in relevant part: “No

new or structurally altered offsite billboards shall be permitted

within the City of Pomona. In technical words conveying the

same meaning, no ‘offsite advertising signs’ as defined shall be

constructed, relocated, or structurally altered in any zoning

district.” (Pomona Mun. Code, § .503-K-K.) An editor’s note in

the municipal code states that Prop. L “cannot be modified

without a vote of the people.” (Ibid.) Thus, beginning in

November 1993, no additional billboards could be built in

Pomona without voter approval. Under the terms of both Prop. L

and the Regency agreement, however, the new law did not apply

to the New Structures.

III. Efforts to Extend the 1993 Agreement

In 2010, six years into the second 10-year term of the 1993

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agreement, Regency approached Pomona with a proposal to

extend the agreement for an additional 15 years. City staff

prepared a report on the proposal and concluded that it would be

possible to extend the agreement notwithstanding Prop. L. Staff

reasoned that Prop. L “does not speak to the removal of existing

signs, which can remain in tact [sic] as long as they are in a

‘grandfathered’ status . . . or as long as the [1993 agreement] is in

effect. . . .” The staff report further noted that, absent some

extension of the agreement, “at the end of the effective date, the

ten signs will need to be removed by Regency.” The report

recommended that the city council entertain the proposal.

Pomona followed the recommendation and began

negotiating with Regency. At the October 2010 city council

meeting, “[d]iscussion ensued regarding the locations of

billboards in the City, types of digital signs, light emissions, and

the possibility of negotiating the removal of the three additional

signs.” No resolution was reached, however, and the matter was

continued.

In advance of the city council meeting scheduled for

January 2011, plaintiff Stephens sent a letter opposing the

proposal to Pomona’s mayor and city council. In the letter, which

he signed in his capacity as president of billboard company Valley

Outdoor, Inc., Stephens opined that the proposed agreement

extension, particularly Regency’s request to digitize certain New

Structures, “violates both the intent and the spirit” of Prop. L.

He further asserted that Pomona could receive “significant

revenue beyond the proposed $1,000,000” by negotiating for

different terms or with his company. In a second letter, sent in

February 2011, Stephens reiterated his concerns about

compliance with Prop. L and explicitly invited the city council “to

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negotiate a revenue sharing development agreement with Valley

Outdoor.”

In March 2011, a representative of Regency sent a letter to

Pomona asking the city council to delay further action “for the

basic reason that Regency . . . and the city have not yet reached a

final consensus on the terms of the agreement.” The city council

appears to have heeded this request; at any rate, the appellate

record does not pick up again until June 2012, when the city

council began the process of issuing public notice for a July 2,

2012 discussion about extending the agreement.

Pomona continued to negotiate extending the 1993

agreement with Regency through early 2014. During the ongoing

negotiations, Regency withdrew its request to digitize some of the

billboards and proposed agreement extensions with varying

durations and revisions. City staff reports prepared during these

negotiations reflect an understanding that the billboards

governed by the 1993 agreement would have to be removed “in

June, 2014 when the term expires” if the agreement was not

extended.

Eventually, in February 2014, Pomona and Regency

tentatively agreed to extend their 1993 agreement for 12 years,

with a one-time payment of $1,000,000 by Regency. A first

reading of an ordinance to approve the agreement extension was

placed on the June 2, 2014 city council agenda. Plaintiff

Stephens appeared at the meeting to oppose the extension. A

representative of the Alameda Corridor-East Construction

Authority also appeared to oppose the extension; some of the

billboards Regency had erected under the agreement were “in

direct conflict” with the agency’s ongoing, $1 billion railroad

expansion project. The city council voted “to open and continue

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the Public Hearing to the Regular City Council meeting to be

held on June 16, 2014.”

Between June 2 and June 16, 2014, Regency worked to

revise the extension proposal to accommodate the railroad

project. Under the terms of the revised proposal—which

expressly recognized that “the original termination date of the

Development Agreement is June 24, 2014”—Regency agreed to

relocate one interfering billboard and remove another, and the

City agreed to process the permits and approvals for the

relocation expeditiously and in good faith. The revised proposal

also included a revised indemnity provision. Under the revised

provision, Regency still had the obligation to indemnify and

defend Pomona, but Pomona had the right “to approve . . . the

legal counsel providing the City’s defense” and Regency agreed to

“not object to the City Attorney’s Office serving as counsel for the

City.”

At its June 16, 2014 meeting, the city council introduced for

first reading Ordinance No. 4190, “an Ordinance approving

amendment number three to Development Agreement No. 93-001

between the City of Pomona and Regency Outdoor Advertising

Inc., extending the agreement twelve years and paying the City

of Pomona $1,000,000.” The annotated agenda for the meeting

states that the city council “approved” the ordinance.

On June 24, 2014, the second 10-year term of the

agreement ended. Regency did not remove any of the billboards it

had placed pursuant to the agreement.

Almost two weeks later, on July 7, 2014, the city council

introduced Ordinance No. 4190 for second reading and adoption.

Stephens attended the meeting to oppose the ordinance;

Regency’s counsel attended to support it. After hearing their

8

comments and discussing the matter, the city council

unanimously voted in favor of Ordinance No. 4190. The

annotated agenda for the meeting reflects that the council

“adopted, at second reading, Ordinance 4190 approving the third

amendment to Development Agreement No. 93-001 between the

City of Pomona and Regency Outdoor Advertising, Inc., extending

the term of the agreement by twelve years and paying the City of

Pomona $1,000,000.”

PROCEDURAL HISTORY

I. Petition

Plaintiffs filed a verified petition for writ of mandate and

complaint for declaratory relief against Pomona—but not

Regency—on August 13, 2014. Plaintiffs described themselves as

follows. “Petitioner and Plaintiff Citizens for Amending

Proposition L is an unincorporated association of residents of the

City of Pomona formed for the purpose of protecting the citizen

based initiative enacted in the City of Pomona in November, 1993

known as Proposition L and to amend Proposition L in the only

manner in which it can be amended, that is, through a vote of the

people of Pomona.” “Vernon Price is an individual residing in the

City of Pomona, and the Chairman of the Citizens for Amending

Proposition L.” “J. Keith Stephens is an individual actively

involved in the billboard business in Pomona since 1987, an

opponent of Proposition L in 1992, an advocate for the 1993

Development Agreement as described in this petition and

complaint [the Regency agreement], but a competitor of Regency

Outdoor Advertising today. Stephens would be adversely affected

by the enactment of the development agreement described later

in this petition.”

9

In their first cause of action, for an alternative and

peremptory writ of mandate, plaintiffs alleged that Pomona’s

adoption of Ordinance No. 4190 “exceeded the power of the City

of Pomona, and constituted an abuse of discretion.” They alleged

that the 1993 agreement “expired on June 24, 2014, and required

the removal of the billboards allowed under that agreement on or

before that date. By not requiring the removal of the billboards,

making any signs that remain ‘new’ signs, that is, signs that

would have otherwise not been allowed (sic). The City has

violated the terms of Proposition L by allowing the ‘new signs’ to

be placed.”2 Plaintiffs asserted that Pomona “had the duty to act

in accordance with State and local laws governing the adoption of

Ordinance 4190 and the extension/amendment to Development

Agreement 93-001, including the California Environmental

Quality Act, . . . and Proposition L, and Plaintiffs have a

beneficial interest in the [sic] enforcing these provisions as

concerned citizens of the City of Pomona, and active participants

in the adoption of Proposition L in the City of Pomona.”

In their second cause of action, for declaratory relief,

plaintiffs sought “a judicial declaration of the rights and

obligations of the parties, specifically a declaration that



2 Plaintiffs also alleged that Pomona failed to comply with

the requirements of the California Environmental Quality Act

(CEQA) “in that it failed to study: (1) the environmental impact

of extending/amending a development agreement originally

contemplated by the parties to be in effect for 20 years; and (2)

the environmental impact of the placement of new billboards on

locations not originally studied with the adoption of the original

development agreement in 1993.” The trial court did not address

plaintiffs’ CEQA claim on the merits, and the parties do not

address the CEQA claim in their briefing.

10

Ordinance 4190 and the extension/amendment of Development

Agreement 93-001 is and/or was illegal, and that any action

taken pursuant to that agreement is null and void.” Plaintiffs

requested attorney’s fees “pursuant to the private attorney

general provisions of state law for protecting the public and the

initiative process.”

II. Demurrer and Motion to Strike

Pomona filed a demurrer and a motion to strike. In its

demurrer, Pomona argued that the action should be dismissed

because plaintiffs failed to join Regency, which it asserted was an

indispensable party under section 389, subdivision (b). In its

motion to strike, Pomona sought to strike numerous allegations

of the pleading on the grounds that they were directly

contradicted by attached exhibits, judicially noticeable

documents, and applicable governing law. It specifically argued

that the Prop. L allegations should be stricken because Prop. L

was not applicable to the agreement, which was enacted before

its passage.

The trial court overruled the demurrer, concluding that

Regency was not an indispensable party to the action. The trial

court also largely denied the motion to strike, granting it only as

to two paragraphs relating to an alleged lack of public notice and

exhaustion of administrative remedies. The court granted

plaintiffs leave to amend, but they did not do so. The proceedings

were stayed for the next year and a half by agreement of the

parties.

III. Ruling

When the stay was lifted, the parties filed memoranda of

points and authorities addressing the merits of the petition. In

the caption on the cover of their supporting memorandum,

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plaintiffs identified themselves as “Pomona Residents to Fix the

Budget Without a Tax Increase” and “J. Keith Stephens”; they

did not mention plaintiffs Price or Citizens. In its opposition,

Pomona argued that the change of parties was improper, negated

the verification of the petition, and demonstrated a lack of

standing. Pomona also argued that the petition must be denied

for failure to name Regency, an indispensable party, and that it

failed on the merits because Pomona had discretion to extend the

1993 agreement. In reply, plaintiffs disputed Pomona’s merits

arguments and asserted that the change in parties listed in the

caption had been a mistake.

The trial court held a hearing on April 7, 2017 and granted

the petition. The trial court accepted plaintiffs’ representation

that the caption change had been in error and concluded that

Citizens and Price had public interest standing as residents of

Pomona.3 The trial court further concluded that Regency, though

a necessary party under section 389, subdivision (a), was not an

indispensable party under subdivision (b) such that the case

could not proceed in its absence. On the merits, the trial court

rejected Pomona’s contention that Prop. L was inapplicable to the

July 7, 2014 agreement extension. It concluded that the 1993

agreement expired on June 24, 2014, such that the putative

“extension” was “in fact a new agreement between the City and

Regency supported by new consideration and containing new

terms.” The court reasoned, “Because the City did not adopt the

Third Amendment until after the Agreement had expired, the

Third Amendment was a new agreement subject to the rules,

regulations, and official policies in force at the time of its



3The court did not address Stephens’s standing or lack

thereof.

12

execution (July 7, 2014), including Proposition L. By adopting the

Third Amendment, the City violated its duty to abide by

Proposition L[,] which prohibits any new or structurally altered

offsite billboards within the City of Pomona.” The court

accordingly granted the petition and directed Pomona to set aside

Ordinance No. 4190. The court entered judgment on May 10,

2017, and notice of entry of judgment was filed on May 11, 2017.

IV. Attorney’s Fees

After the trial court granted the petition, plaintiffs moved

for attorney’s fees under section 1021.5. They asked for a

lodestar of $189,900, representing 379.8 hours of work at a rate

of $500 per hour. They also requested that the lodestar be

multiplied by three, for a total fee award of $569,700, citing the

complexity of the case, their complete victory, and other factors.

Pomona opposed the motion, arguing that plaintiffs did not

satisfy the statutory requirements for fees under section 1021.5,

that the time expenditures and requested fees were excessive,

and that a multiplier was unwarranted.

The trial court found that plaintiffs met the statutory

criteria of section 1021.5 and granted the motion for fees. It

determined that both the billing rate and number of hours billed

were excessive, however, and reduced the hourly fee to $300 and

the total compensable hours to 250.67. The resultant lodestar

was $75,200.40. The court found “no basis for enhancing the fees

with a multiplier” and therefore awarded plaintiffs a total of

$75,200.40 in attorney’s fees. It entered the order on June 16,

2017.

V. Appeal and Motion for Sanctions

Pomona filed a timely notice of appeal on July 7, 2017,

challenging both the judgment and the award of attorney’s fees.

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After the matter was fully briefed, plaintiffs filed a motion

for sanctions pursuant to section 907 and California Rules of

Court, rule 8.276(a)(1). Plaintiffs alleged that “the only purpose

of this appeal was to delay the effect of the writ of mandate” and

sought sanctions in the “minimum” amount of “$200,000.00 as a

one month estimate of the revenue” Regency earned while

operating its billboards.

DISCUSSION

I. Standing

Pomona contends that none of the three plaintiffs—Price,

Stephens, and Citizens—had standing to bring this mandamus

action. It argues that all three plaintiffs lack the beneficial

interest in the litigation necessary to support a writ of

mandamus. It further argues that none of them qualifies for the

“public interest” exception to the beneficial interest requirement,

because “they seek to further their own competitive interests, not

the public interest.” We disagree. The trial court appropriately

concluded that plaintiffs Price and Citizens had public interest

standing to pursue this action.

A. Legal Principles

A writ of mandate under section 1085 is a vehicle to compel

a public entity to perform a legal duty, typically one that is

ministerial. (Weiss v. City of Los Angeles (2016) 2 Cal.App.5th

194, 204.) Under section 1085, the trial court reviews an

administrative action to determine whether an agency’s action

“‘was arbitrary, capricious, or entirely lacking in evidentiary

support, contrary to established public policy, unlawful [or]

procedurally unfair. . . . [Citations.] “Although mandate will not

lie to control a public agency’s discretion, that is to say, force the

exercise of discretion in a particular manner, it will lie to correct

14

abuses of discretion. [Citation.]”’ [Citation.]” (Ibid.)

“As a general rule, a party must be ‘beneficially interested’

to seek a writ of mandate. (Code Civ. Proc., § 1086.) ‘The

requirement that a petitioner be “beneficially interested” has

been generally interpreted to mean that one may obtain the writ

only if the person has some special interest to be served or some

particular right to be preserved or protected over and above the

interest held in common with the public at large. [Citations.] . . .’

The beneficial interest must be direct and substantial.” (Save the

Plastic Bag Coalition v. City of Manhattan Beach (2011) 52

Cal.4th 155, 165 (Save the Plastic Bag).) This standard “is

equivalent to the federal ‘injury in fact’ test, which requires a

party to prove by a preponderance of the evidence that it has

suffered ‘an invasion of a legally protected interest that is “(a)

concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical.”’ [Citation.]” (Associated Builders

and Contractors, Inc. v. San Francisco Airports Commission

(1999) 21 Cal.4th 352, 362.)

“Nevertheless, ‘“where the question is one of public right

and the object of the mandamus is to procure the enforcement of

a public duty, the [petitioner] need not show that he has any legal

or special interest in the result, since it is sufficient that he is

interested as a citizen in having the laws executed and the duty

in question enforced.”’ [Citation.] This ‘“public right/public duty”

exception to the requirement of a beneficial interest for a writ of

mandate’ ‘promotes the policy of guaranteeing citizens the

opportunity to ensure that no governmental body impairs or

defeats the purpose of legislation establishing a public right.’

[Citations.] We refer to this variety of standing as ‘public interest

standing.’ [Citation.]” (Save the Plastic Bag, supra, 52 Cal.4th at

15

p. 166.) It is also known as “‘citizen standing.’” (See, e.g., Rialto

Citizens for Responsible Growth v. City of Rialto (2012) 208

Cal.App.4th 899, 913.)

“[T]he interest of a citizen may be considered sufficient

when the public duty is sharp and the public need weighty.”

(Waste Management of Alameda County, Inc. v. County of

Alameda (2000) 79 Cal.App.4th 1223, 1237, disapproved on other

grounds by Save the Plastic Bag, supra, 52 Cal.4th at pp. 169-170

(Waste Management).) “[T]he courts balance the applicant’s need

for relief (i.e., his beneficial interest) against the public need for

enforcement of the official duty. When the duty is sharp and the

public need weighty, the courts will grant a mandamus at the

behest of an applicant who shows no greater personal interest

than that of a citizen who wants the law enforced.” (McDonald v.

Stockton Metropolitan Transit District (1973) 36 Cal.App.3d 436,

440.) Determining whether the exception is warranted thus

“involves a ‘judicial balancing of interests.’ [Citation.]” (SJJC

Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th

1043, 1058 (SJJC).) The balancing is done on a sliding scale:

“When the public need is less pointed, the courts hold the

petitioner to a sharper showing of personal need.” (McDonald v.

Stockton Metropolitan Transit District, supra, 36 Cal.App.3d at p.

440.) The trial court also may find public interest standing

outweighed by “competing considerations of a more urgent

nature.” (Green v. Obledo (1981) 29 Cal.3d 126, 145; see also

Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 874-

875.) A petitioner is not entitled to pursue a mandamus petition

under the public interest exception as a matter of right. (Save

the Plastic Bag, supra, 52 Cal.4th at p. 170 & fn. 5.)

16

Standing is a question of law that we review de novo. (San

Luis Rey Racing, Inc. v. California Horse Racing Board (2017) 15

Cal.App.5th 67, 74.) We review any factual findings underlying a

trial court’s ruling on standing for substantial evidence. (Ibid.)

However, the determination whether to apply the public interest

exception involves a judicial balancing of interests and is

reviewed for abuse of discretion. (Reynolds v. City of Calistoga,

supra, 223 Cal.App.4th at pp. 874-875.)

B. Analysis

The trial court found that plaintiffs Price and Citizens were

residents of Pomona and had public interest standing “to ensure

that the City does not permit the construction of billboards in

violation of Proposition L.” Pomona argues that the trial court’s

application of the public interest standing exception implies that

it found plaintiffs lacked a beneficial interest in a writ of

mandamus. We agree.

There would be no need for the trial court to consider the

public interest exception if plaintiffs demonstrated a beneficial

interest. Nothing in the record suggests they made such a

showing, despite their unsupported assertion that they have a

beneficial interest in “making sure Appellant complies with its

laws.” A beneficial interest is present only when a plaintiff “‘has

some special interest to be served or protected over and above the

interest held in common with the public at large.’” (Save the

Plastic Bag, supra, 52 Cal.4th at p. 165.) There is no evidence

that Citizens, Price, or Stephens experienced any actual,

imminent, or particularized invasion of a legally protected

interest as a result of Pomona’s adoption of Ordinance No. 4190.

A desire to ensure that a city complies with its laws does not

alone give rise to a beneficial interest.

17

Yet it may give rise to public interest standing, as the court

concluded it did here for Price and Citizens. Pomona contends

that conclusion was erroneous for two reasons.

First, Pomona argues that all three plaintiffs lack public

interest standing because they sought mandamus to advance

their own competitive objectives rather than to promote or

safeguard the public welfare. Pomona contends plaintiffs “failed

to demonstrate that the public has any interest in preventing the

City from extending a development agreement that is authorized

by state law and provides significant revenues to the City,” and

that even if they had, their “interest is not in removing

billboards, but in removing Regency’s billboards and promoting

their own.” Pomona relies primarily on Waste Management,

supra, 79 Cal.App.4th 1223 and SJJC, supra, 12 Cal.App.5th

1043. Neither case demonstrates that the trial court abused its

discretion in concluding public interest standing supported the

action here.

In Waste Management, two competing landfills were located

in the same county but were under the jurisdiction of two

different regional water boards. (Waste Management, supra, 79

Cal.App.4th at p. 1230.) When Waste Management sought to

accept certain designated wastes at its landfill, the water board

overseeing it required Waste Management to undergo a

“classification upgrade,” and the county required Waste

Management to conduct a CEQA review. (Id. at p. 1231.) When

Waste Management’s competitor later sought to accept the same

type of waste, its water board did not require it to reclassify; the

county accordingly did not require the competitor to perform a

CEQA review. (Id. at p. 1231.) Waste Management took issue

with the fact that it had to perform a CEQA review while its

18

competitor did not; it alleged the disparity “would create an

unlevel playing field” and wrote a letter to the county demanding

that the county mandate CEQA review for the competitor. (Ibid.)

The county ultimately filed a notice of CEQA exemption for the

competitor. (Ibid.)

Waste Management sought a writ of mandate. The trial

court issued the writ, but the court of appeal reversed on

standing grounds. (Waste Management, supra, 79 Cal.App.4th at

1241.) As relevant here, the court of appeal held that Waste

Management lacked public interest standing primarily because it

was “pursuing its own economic and competitive interests” rather

than “interest in or commitment to the environmental concerns

which are the essence of CEQA.” (Id. at p. 1238.) The court of

appeal additionally noted that Waste Management had “not

pointed to any beneficially interested persons whom it purports

to represent,” nor had it “demonstrated that persons who may be

beneficially interested in the matter would find it difficult or

impossible to vindicate their own interests.” (Id. at pp. 1238-

1239.)4

In SJJC, an unsuccessful bidder for an airport expansion

project sought a writ of mandate when the city awarded the

project to a competitor. (See SJJC, supra, 12 Cal.App.5th at pp.

1047-1049.) It alleged that the award violated CEQA and that

the proposal assessment process had been unfair. (Id. at p. 1050.)

Like Waste Management, SJJC primarily argued that the city



4 Waste Management also held that a “nonhuman entity”

should be held to a higher standard than a natural person when

seeking to assert public interest standing. (Waste Management,

supra, 79 Cal.App.4th at p. 1238.) The Supreme Court

disapproved this holding. (Save the Plastic Bag, supra, 52

Cal.4th at pp. 169-170.)

19

gave its competitor an unfair advantage. (See ibid.) The trial

court sustained the city’s demurrer, and the court of appeal

affirmed on standing grounds. (Id. at p. 1053.) The court of

appeal rejected SJJC’s assertion of public interest standing. It

explained, “where the claim of ‘citizen’ or ‘public interest’

standing is driven by personal objectives rather than ‘broader

public concerns,” a court may find the litigant to lack such

standing.” (Id. at p. 1057, quoting Save the Plastic Bag, supra, 52

Cal.4th at p. 169.) Such a finding was proper in SJJC because

“SJJC contends that as a potential competitor at the airport it

should know what the public should want. It does not

demonstrate how the City Council erred in determining that [its

competitor’s proposal] would be in the public interest.” (Id. at p.

1058.) Moreover, the court of appeal continued, SJJC failed to

identify any statutory violations indicating that the city violated

its duty to conduct a fair procurement process or any violations of

the city’s own municipal laws or charter. (Id. at pp. 1058-1059.)

Here, Pomona speculates that Price and Citizens are

exclusively advancing a commercial interest. Yet Price is

identified in the record as an individual residing in Pomona and

chairperson of Citizens. Citizens is identified as “an

unincorporated association of residents of the City of Pomona

formed for the purpose of protecting” Proposition L. The record

does not reveal that either of them was a competitor of Regency

or was directly affiliated with Stephens, who plainly was acting

to advance the interests of his own billboard company. Even if it

did, neutrality is not “a necessary prerequisite for public interest

standing.” (Save the Plastic Bag, supra, 52 Cal.4th at p. 169.)

“[I]ndeed, truly neutral parties are unlikely to bring citizen

suits.” (Ibid.) Instead, a personal objective is one factor the court

20

may consider when weighing the propriety of public interest

standing. (See SJJC, supra, 12 Cal.App.5th at p. 1057.) Unlike

the plaintiff in SJJC, plaintiffs here alleged that the city violated

its own municipal law. Compliance with the law, particularly one

enacted by voter initiative in response to the initial formation of

the contract allowing billboards into the city, is in our view a

“sharp” public duty. The public need for enforcement of the law

also is weighty; the record suggests that, absent Stephens’s 2011

intervention in the negotiations, digital billboards might have

been installed without broad public awareness of any potential

issue. “When the duty is sharp and the public need weighty, the

courts will grant a mandamus at the behest of an applicant who

shows no greater personal interest than that of a citizen who

wants the law enforced.” (McDonald v. Stockton Metropolitan

Transit District, supra, 36 Cal.App.3d at p. 440.) That is what

happened here.

Pomona also contends that the trial court erred in finding

that Citizens had public interest standing because “there is no

evidence that this association has any members other than Price

and . . . there is no record of its advocacy or even its existence

apart from this lawsuit.” It further asserts that “[i]t is telling”

that Citizens’s name was replaced on a filing by the name of

another organization. Pomona relies solely on San Francisco

Apartment Association v. City and County of San Francisco

(2016) 3 Cal.App.5th 463, 472, for the proposition that an

association’s standing is derivative of its members’ standing and

is subject to the same challenges. That case indeed states that an

association has standing to bring suit on behalf of its members

when (1) its members otherwise would have standing to sue in

their own right; (2) the interests it seeks to protect are pertinent

21

to the association’s purpose; and (3) neither the claim asserted

nor the relief requested requires participation of the association’s

individual members. (Ibid.) Those principles do not help here.

Price, the sole identified member of Citizens, has public interest

standing to sue, as may other Pomona citizens involved in the

organization. One of Citizens’s asserted purposes is to protect

Prop. L, and neither the claim—that Pomona violated Prop. L—

nor the relief requested—that Pomona comply with Prop. L—

requires any members of Citizens to participate in the suit.

The trial court did not err in concluding that plaintiffs

Price and Citizens had public interest standing to sue.

II. Indispensable Party

Pomona next contends that the trial court abused its

discretion by holding that Regency was not an indispensable

party to the litigation. Pomona argues that the trial court abused

its discretion both by failing to consider all of the statutory

factors listed in section 389, subdivision (b) and by finding that

Pomona would adequately represent Regency’s interests. We

disagree.

A. Legal Principles

Section 389 governs the joinder of parties to litigation. It

provides:

“(a) A person who is subject to service of process and whose

joinder will not deprive the court of jurisdiction over the subject

matter of the action shall be joined as a party in the action if (1)

in his absence complete relief cannot be accorded among those

already parties or (2) he claims an interest relating to the subject

of the action and is so situated that the disposition of the action

in his absence may (i) as a practical matter impair or impede his

ability to protect that interest or (ii) leave any of the persons

22

already parties subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligations by reason of his

claimed interest. If he has not been so joined, the court shall

order that he be made a party.

“(b) If a person as described in paragraph (1) or (2) of

subdivision (a) cannot be made a party, the court shall determine

whether in equity and good conscience the action should proceed

among the parties before it, or should be dismissed without

prejudice, the absent person being thus regarded as

indispensable. The factors to be considered by the court include:

(1) to what extent a judgment rendered in the person’s absence

might be prejudicial to him or those already parties; (2) the

extent to which, by protective provisions in the judgment, by the

shaping of relief, or by other measures, the prejudice can be

lessened or avoided; (3) whether a judgment rendered in the

person’s absence will be adequate; (4) whether the plaintiff or

cross-complainant will have an adequate remedy if the action is

dismissed for nonjoinder.” (§ 389, subds. (a) & (b).)

Subdivision (a) of section 389 defines “necessary parties” as

those persons who “ought to be joined if possible.” (County of San

Joaquin v. State Water Resources Control Board (1997) 54

Cal.App.4th 1144, 1149.) The trial court must determine that a

party is necessary under subdivision (a) before assessing whether

the party is indispensable under subdivision (b). (Deltakeeper v.

Oakdale Irrigation District (2001) 94 Cal.App.4th 1092, 1100

(Deltakeeper).) “Then, subdivision (b) sets forth the factors to

follow if such a person cannot be made a party in order to

determine ‘whether in equity and good conscience the action

should proceed among the parties before it, or should be

dismissed without prejudice, the absent person being thus

23

regarded as indispensable.’ (Italics added.) The subdivision (b)

factors ‘are not arranged in a hierarchical order, and no factor is

determinative or necessarily more important than another.’

[Citation.]” (San Joaquin, supra, 54 Cal.App.4th at p. 1149.)

The trial court’s assessment of indispensability and consideration

of these factors “‘involve the balancing of competing interests and

must be steeped in “pragmatic considerations.”’ [Citation.]” (Id.

at p. 1152.)

We review the trial court’s determination that a party is or

is not indispensable for abuse of discretion. (San Joaquin, supra,

54 Cal.App.4th at pp. 1151-1153; Kaczorowski v. Mendocino

County Board of Supervisors (2001) 88 Cal.App.4th 564, 568.)

B. Ruling

The trial court initially addressed Regency’s

indispensability at the demurrer stage of the litigation. There, it

concluded that Regency was a necessary party under Public

Resources Code section 21167.6.5, subdivision (a), due to

plaintiffs’ CEQA claim.5 The trial court did not revisit its ruling

that Regency was a necessary party, and the parties do not

dispute the finding.

The trial court also identified each of the four section 389,

subdivision (b) factors and discussed them at length in its

demurrer ruling. As to the first factor, prejudice, the trial court

concluded Regency would not be prejudiced “because its interests

will be adequately protected by the City pursuant to the



5Although neither side substantively addresses the CEQA

claim in this appeal, Pomona advocates in favor of the trial

court’s conclusion that Regency is a necessary party under

CEQA. It does not argue that Regency is necessary on any other

basis.

24

Development Agreement,” which the court noted “requires the

City and Regency to ‘cooperate with each other in the preparation

and defense of any action.’” The trial court found this analogous

to an agreement in Deltakeeper, supra, 94 Cal.App.4th at p. 1103,

which gave nonjoined entities a right to participate in and control

the litigation. The court also reasoned that both Regency and

Pomona had a financial interest in the agreement: “[t]he financial

stake the City has in the Amendment, for which Regency is

obligated to pay $1 million, also places the City in a position to

argue vigorously in favor of its validity. This protects Regency’s

interests in this litigation.”

As to the second factor, “[w]hether there are measures by

which any prejudice to the unjoined party can be lessened or

avoided,” the trial court asked what contribution Regency could

make if joined to the proceedings. It concluded that Regency’s

contribution would be minimal: “[t]he fact that both the City and

Regency are bound by a collective litigation decision-making

process indicates that their defenses to the litigation will be the

same.” The court further found that Regency and Pomona “have

identical interests in enforcing the Amendment, to which they are

both parties,” and share “significant financial interests.” The

court accordingly concluded that the second factor, like the first,

weighed against deeming Regency an indispensable party.

As to the third factor, adequacy of the judgment in the

absence of the nonjoined party, the trial court focused on whether

complete relief could be afforded to the participating parties in

Regency’s absence. As part of that query, the trial court

considered whether any judgment would be subject to collateral

attack by Regency. The trial court found that it would not be,

because a ruling that the amended agreement was unenforceable

25

would render any action to enforce it legally impossible. “If the

Amendment is found to exceed the City’s authority and violate

Proposition L and/or the Planning Law, any attempt by Regency

to force the City to meet its obligations under the Amendment

would be met with the defense of legal impossibility. [Citation.]

Therefore, any judgment rendered in this action would be

adequate as to the parties currently before the Court.”

The trial court concluded that the fourth factor, whether

plaintiffs would have an adequate remedy if their action were

dismissed for failure to join Regency, also cut in favor of

plaintiffs. The court concluded that plaintiffs, like the plaintiffs

in Deltakeeper, supra, 94 Cal.App.4th at p. 1108, would have no

recourse, because the statute of limitations for adding more

parties had passed. The trial court also noted Pomona’s

acknowledgment “that [Plaintiffs] have no other remedy at law.”

After finding that all four factors pointed to the conclusion

that Regency was not indispensable, the court ruled that Regency

was not an indispensable party and allowed the suit to move

forward. Pomona raised the issue of indispensability a second

time in advance of the merits hearing, reasserting its previous

arguments and adding that a decision published after the ruling

on the demurrer, Simonelli v. City of Carmel-by-the-Sea (2015)

240 Cal.App.4th 480 (Simonelli), was “directly on point and

establishes that Regency is both a necessary and indispensable

party.”

The trial court indicated that it was not inclined to

reconsider its earlier ruling. It distinguished Simonelli, supra,

on the basis that the agreement between Regency and Pomona

“gives Regency the ability to control defense of any litigation.”

The trial court pointed to the indemnity language from the 1993

26

agreement, not the July 2014 amendment: “‘[i]n the event of any

legal action instituted by a third party . . . challenging the

validity of any provision of this Agreement, Developer [Regency]

and the City shall cooperate in defending any such action.’ . . .

‘Developer shall defend City . . . from any legal actions . . .

challenging the validity of any provision of this Agreement’ and

‘shall be entitled to select counsel to conduct such defense, who

shall be authorized to represent City as well as Developer. . . .’”

The trial court reasoned, “[b]y requiring Regency to defend the

City, the Agreement ensures that Regency’s interests will be

protected regardless of whether Regency is made a party to the

action. Moreover, in this case, the City’s and Regency’s interests

are aligned because the City has an interest in ensuring that its

million dollar contract with Regency is not set aside.”

C. Analysis

Pomona first contends the trial court abused its discretion

by failing to consider all factors supporting a finding of

indispensability. It asserts, “the trial court gave no indication it

considered all the Subsection [sic] (b) Factors and balanced these

factors as required.” Pomona suggests that the trial court

considered only the third factor. These contentions are not

supported by the record.

As outlined above, the trial court identified and discussed

all four factors set forth in section 389, subdivision (b) when it

overruled Pomona’s demurrer. In its subsequent ruling, the trial

restated the section 389, subdivision (b) factors and expressly

referred back to its previous ruling—“The Court previously

overruled Respondent’s demurrer on this ground[,] finding that

Regency is not an indispensable party to this action. (See March

18, 2015 Minute Order.)” The court’s enumeration of the

27

statutory factors and its explicit reference to its earlier analysis

of them is an indication that it was aware of and considered the

appropriate factors. The court was well within its discretion to

reiterate rather than reproduce its prior analysis.

Pomona next contends the trial court abused its discretion

by finding that Regency’s interests would be adequately

protected. Specifically, it argues that the trial court erroneously

relied on the indemnity provision from the original development

agreement rather than the amended one, and that in any event

Simonelli, supra, 240 Cal.App.4th 480 holds that an indemnity

provision “is not a sufficient basis to conclude that the party

named in the litigation will adequate [sic] represent the interests

of the absent party.”

We agree with Pomona that the applicable indemnity

provision was that contained in the July 7, 2014 version of the

agreement. Whether the agreement was amended (as Pomona

argues) or was a new agreement (as plaintiffs argue and the trial

court ruled), the indemnity provision it contained was the

operative one between Pomona and Regency. Indeed, it expressly

“replaced in its entirety” the indemnity provision from the

original agreement on which the trial court relied, and applies to

attempts, like that of plaintiffs, to “modify, set aside, void, or

annul” the amended agreement. We note, however, that Pomona

did little to alert the court, either in its briefing or in open court,

that the applicable provision was that contained in the July 7,

2014 agreement.

The updated provision, entitled “Cooperation in the Event

of Legal Challenge and Indemnity,” states:

“Developer shall indemnify, protect, defend, and hold

harmless the City . . . from any and all claims, demands, law

28

suits [sic], writs of mandamus, and other actions and proceedings

(whether legal, equitable, declaratory, administrative or

adjudicatory in nature), and alternative dispute resolution

procedures (including, but not limited to, arbitrations,

mediations, and other such procedures), (collectively, ‘Actions’),

brought against the City . . ., that seek to modify, set aside, void,

or annul, the Development Agreement and this Third

Amendment, whether such Actions are brought under the

California Environmental Quality Act, the Planning and Zoning

Law, the Subdivisions Map Act, Code of Civil Procedure Section

1085 or 1094.5, or any other state, federal, or local statute, law,

ordinance, rule, regulation, or any decision of a court of

competent jurisdiction. It is expressly agreed that the City shall

have the right to approve, which approval will not be

unreasonably withheld, the legal counsel providing the City’s

defense, and that Developer shall reimburse City for any

reasonable costs and expenses directly and necessarily incurred

by the City in the course of the defense. Developer will not object

to the City Attorney’s Office serving as counsel for the City.

“City shall notify Developer of any Action within ten (10)

business days of receipt of an Action. Failure of the City to

promptly notify Developer of an Action shall, at the election of

Developer, terminate any obligation for Developer to indemnify

the City.

“City and Developer agree that they, and any legal counsel

hired by them, will cooperate with each other in the preparation

and defense of any Action. This includes, but is not limited to,

cooperation in the preparation of the administrative record and

consultation with one another in good faith in the preparation of

court filings to ensure that unnecessary and duplicative costs are

29

not incurred in the defense of any Action. City shall have the

right to review and approve all court filings filed on its behalf.

City and Developer agree that each will be advised by their

respective counsel independently of the other party.

“City shall not enter into any settlement or resolution of

the Action without first obtaining written approval of such

settlement or resolution by Developer. Developer shall not enter

into any settlement or resolution of any Action without first

consulting with the City. City shall not reject any reasonable

settlement; if City does reject a settlement that is acceptable to

Developer, Developer may settle the action, as it relates to

Developer, and City shall thereafter defend such action

(including appeals) at its own cost.”

Pomona argues that this provision is not sufficient to

support the trial court’s conclusion that its interests were aligned

with Regency’s. It relies on Simonelli, supra, 240 Cal.App.4th

480, which the trial court distinguished.

In Simonelli, a petitioner proceeding in pro. per. sought a

writ of mandamus against Carmel-by-the-Sea after the city

approved a development application for a vacant lot abutting her

property. She did not name the developer as a party. (Simonelli,

supra, 240 Cal.App.4th at p. 482.) The trial court sustained the

city’s demurrer without leave to amend on the ground that the

developer was an indispensable party that could not be joined

due to the statute of limitations. (Ibid.) The petitioner appealed,

and the appellate court affirmed the trial court’s ruling that the

developer was an indispensable party. (Id. at p. 482.)

As is relevant here, the petitioner argued that the

developer was not a necessary or indispensable party because the

developer was required, “as a condition of approval of its permit[,]

30

to fund the City’s defense against her petition.” (Simonelli,

supra, 240 Cal.App.4th at p. 484.) The indemnity provision at

issue stated: “‘The applicant agrees, at its sole expense, to

defend, indemnify, and hold harmless the City . . . from any

liability; and shall reimburse the City for any expense incurred,

resulting from, or in connection with any project approvals. . . .

The City shall promptly notify the applicant of any legal

proceedings, and shall cooperate fully in the defense.’” (Ibid.)

This provision formed the entire basis of the petitioner’s

argument as to why the developer was not an indispensable

party.

The appellate court rejected her argument. It concluded

that the provision did not ensure that the City would protect the

developer’s interests because it “does not give [the developer] the

power to control the City’s defense of Simonelli’s action.” (Ibid.)

The court further found that the city “has not ceded control of the

litigation” and therefore “could decide not to defend against

Simonelli’s action or to conduct the litigation in such a manner as

to be adverse to [the developer’s] interest.” (Id. at pp. 484-485.)

The appellate court relied on this reasoning to conclude that the

developer was both a necessary and indispensable party to the

litigation, because it otherwise would be unable to protect its

interests.

Pomona asserts the same rationale should apply here. It

argues, “Simonelli establishes that an obligation to defend

another in litigation does not permit a finding that that person

will adequately represent the payor’s interest in [the] litigation.

[Citation.] Just as the Simonelli court recognized that the city

could ‘conduct the litigation in such a manner as to be adverse to

[the developer’s] interest,’ the City’s counsel here could choose to

31

represent its interests to the detriment of Regency’s.” A leading

treatise has interpreted Simonelli the same way, citing the case

for the proposition that “[t]he mere fact that the nonjoined party

is required to defend and indemnify the joined party is not

enough to establish adequacy of representation if the nonjoined

party does not have the power to control the joined party’s

defense.” (Weil & Brown, Cal. Practice Guide: Civil Procedure

Before Trial (The Rutter Group June 2018 Update) ¶ 2:156, p.2-

65.)

The indemnity provision here gives the nonjoined party,

Regency, more control over the litigation than the provision in

Simonelli; unlike the developer there, Regency is entitled to play

a role in selecting counsel. Pomona argues this is not enough to

support a finding that Pomona will protect Regency’s interests,

especially in light of the clause providing that Pomona and

Regency “agree that each will be advised by their respective

counsel independently of the other party.” We need not decide

whether this level of control afforded Regency over the litigation

is sufficient to distinguish it from Simonelli, because the case is

distinguishable on its facts.

In Simonelli, the developer sought and received a permit

from the city to develop land next to the petitioner’s; there is no

indication that the city had an independent interest in the

project. Courts have recognized that a city can “not be expected to

adequately represent the developer’s interest in litigation where

the city had no special interest in the project.” (Deltakeeper,

supra, 94 Cal.App.4th at p. 1104; cf. Sierra Club, Inc. v.

California Coastal Commission (1979) 95 Cal.App.3d 495, 501 [“if

the plaintiff or petitioner prays for the cancellation of a legal

right in a certificate, permit or license issued in the name of and

32

being the property of a third person, such party is an

indispensable party to the action”].) Here, however, Pomona has

an interest in the validity of an agreement to which it is a party.

If the agreement is upheld, it will receive a payment of $1

million. It was not an abuse of discretion for the trial court to

conclude from this interest that Pomona could “be expected

vigorously to argue in favor of” upholding the contract.

(Deltakeeper, supra, at p. 1096.) Indeed, Pomona has done just

that, regardless of the level of control Regency may have exerted

or is exerting over the litigation.

Pomona points to authority stating that “a common

litigation objective is not enough to establish adequacy of

representation by the named parties.” (County of Imperial v.

Superior Court (2007) 152 Cal.App.4th 13, 38.) Here, however,

the interests of Regency and Pomona are aligned not only legally

but also financially. Moreover, the nonjoined parties in County of

Imperial “vociferously argue[d] that the disparate interests of

[the named parties] prevent the named parties from representing

their interests.” (Ibid.) Neither Pomona nor Regency suggests

their interests do not align.

Pomona does suggest, however, that the other factors listed

in section 389, subdivision (b)—which it maintains the trial court

did not address—“support a finding of indispensability.” Pomona

“analyzes each factor to present a scenario in which the

discretionary factors could be balanced [in its favor], but . . . has

failed to demonstrate why these factors must be balanced in this

manner.” (County of Imperial v. Superior Court, supra, 152

Cal.App.4th at p. 35.) We accordingly are not persuaded.

Although Regency’s interests undoubtedly will be affected by the

outcome of this suit, the trial court did not abuse its discretion by

33

finding that Regency was not indispensable to the litigation. As

in Deltakeeper, “the rights asserted in this litigation”—

compliance with city ordinances when entering contracts—“are

independent of the contractual rights . . . established in the

Agreement.” (Deltakeeper, supra, 94 Cal.App.4th at p. 1106.)

Had Regency been joined, it “would have been limited at trial to

the same legal arguments” about whether and to what extent

Pomona complied with Prop. L. (Id. at p. 1108.)

III. Merits

Pomona argues the trial court erred in granting a writ of

mandamus for several reasons. First, it contends that

“[a]mending a development agreement is a legislative act

committed to the City of Pomona’s discretion by Government

Code §§ 65868 and 65867.5.” Therefore, the trial court should

“have reviewed the Third Amendment under a highly-deferential,

‘arbitrary, capricious, or entirely lacking in evidence’ standard

afforded to legislative acts and upheld it.” Second, it argues that

even if Prop. L could impose a mandatory duty on the city, such

duty “could only be triggered by the discretionary finding that the

billboards at issue are ‘new or altered,’ a finding the City did not

make.” Finally, Pomona argues that the trial court “erred based

on contract law by disregarding the parties’ intent and by

interpreting the contract in a way that rendered it unlawful

rather than in a way that gave it effect.” None of these

contentions is persuasive.

A. Duty

1. Legal Principles

“A writ of mandate will lie to ‘compel the performance of an

act which the law specially enjoins, as a duty resulting from an

office, trust or station,’ (Code Civ. Proc., § 1085) ‘where there is

34

not a plain, speedy, and adequate remedy, in the ordinary course

of law.’ (Code Civ. Proc., § 1086.)” (County of Los Angeles v. City

of Los Angeles (2013) 214 Cal.App.4th 643, 653 (Los Angeles).) “A

trial court must determine whether the agency had a ministerial

duty capable of direct enforcement or a quasi-legislative duty

entitled to a considerable degree of deference.” (Ibid.) “A

ministerial duty is one which is required by statute. ‘A

ministerial act is an act that a public officer is required to

perform in a prescribed manner in obedience to the mandate of

legal authority and without regard to his own judgment or

opinion concerning such act’s propriety or impropriety, when a

given state of facts exists. Discretion, on the other hand, is the

power conferred on public functionaries to act officially according

to the dictates of their own judgment.’ [ Citations.]” (Id. at pp.

653-654.)

While mandate lies to compel a public agency to comply

with a ministerial duty, it usually does not lie to compel a public

agency to exercise its discretion in a particular manner. (Los

Angeles, supra, 214 Cal.App.4th at p. 654.) An action’s

classification as ministerial or discretionary thus is crucial to the

ultimate question whether mandate lies. “‘A duty is ministerial

when it is the doing of a thing unqualifiedly required. [Citation.]’

[Citation.] A public entity has a ministerial duty to comply with

its own rules and regulations where they are valid and

unambiguous.” (Gregory v. State Board of Control (1999) 73

Cal.App.4th 584, 595.) In the context of discretionary acts,

mandate lies only to correct abuses of discretion. (Los Angeles,

supra, 214 Cal.App.4th at p. 654) “In determining whether a

public agency has abused its discretion, the court may not

substitute its judgment for that of the agency, and if reasonable

35

minds may disagree as to the wisdom of the agency's action, its

determination must be upheld. [Citation.] A court must ask

whether the public agency’s action was arbitrary, capricious, or

entirely lacking in evidentiary support, or whether the agency

failed to follow the procedure and give the notices the law

requires.” (Ibid.)

“In reviewing a judgment granting a writ of mandate, we

apply the substantial evidence standard of review to the court’s

factual findings, but independently review its findings on legal

issues. [Citation.] Interpretation of statutes, including local

ordinances and municipal codes, is subject to de novo review.”

(City of San Diego v. San Diego Employees’ Retirement System

(2010) 186 Cal.App.4th 69, 78.)

2. Analysis

Pomona argues that whether to amend a development

agreement is a discretionary decision, and that the trial court

therefore erred in finding it abdicated a duty. Pomona contends

the court should have found that it did not act in an arbitrary or

capricious fashion, or without evidentiary support, in voting to

amend the 1993 agreement. We disagree.

Pomona is correct that the “letting of contract by a

governmental entity necessarily requires an exercise of discretion

guided by considerations of the public welfare.” (Joint Council of

Interns & Residents v. Board of Supervisors (1989) 210

Cal.App.3d 1202, 1211.) Indeed, Government Code section

65867.5, subdivision (a) provides, “A development agreement is a

legislative act that shall be approved by ordinance and is subject

to referendum.”

6 Amendments to development agreements are



6 The trial court questioned whether the agreement

between Pomona and Regency was a “development agreement[]

36

subject to the provisions of Government Code section 65867.5.

(Gov. Code, § 65868.) Legislative enactments such as these “are

presumed to be valid; to overcome this presumption the

petitioner must bring forth evidence compelling the conclusion

that the ordinance is unreasonable and invalid.” (County of Del

Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 973.)

The problem for Pomona is that plaintiffs carried that

burden here. They pointed to Prop. L, which unequivocally states

that “No new or structurally altered billboards shall be permitted

within the City of Pomona.” Plaintiffs also pointed to the original

development agreement and its termination date of June 24,

2014. The agreement provided and Pomona acknowledged on

numerous occasions that Regency was supposed to “remove all of

the New Structures” on or before that date; the authorized

number of billboards that could be placed in the eligible display

areas after the agreement expired on June 24, 2014 was zero. Yet

the billboards remained, and Pomona adopted Ordinance No.

4190 on July 7, 2014, purporting to authorize their presence. The

Ordinance (and the contract it authorized) thus violated Prop. L,

which cannot be modified except by vote of the citizens of

Pomona.

The trial court correctly concluded that Pomona violated its

duty to comply with Prop. L by entering into a contract that

directly violated its terms. Public agencies have a duty to comply

with applicable state statutes and local ordinances. (See Rancho

Murieta Airport, Inc. v. County of Sacramento (2006) 142

Cal.App.4th 323, 325-327.) Pomona abdicated that duty here.



embraced by Government Code sections 65864 et seq.,” but did

not rule on the question. We likewise express no opinion on this

issue.

37

Alternatively, Pomona’s exercise of its discretion in such a way as

to ignore Prop. L constituted an abuse of that discretion that the

court properly could have found “arbitrary, capricious, or lacking

in evidentiary support.”

B. New Contract

Pomona argues that the trial court’s conclusion that the

July 7, 2014 agreement was a new contract rather than an

extension or amendment of the 1993 agreement was “incorrect as

a matter of contract law.” We reject this argument.

1. Legal Principles

“It is a judicial function to interpret a contract or written

document unless the interpretation turns upon the credibility of

extrinsic evidence.” (City of El Cajon v. El Cajon Police Officers’

Association (1996) 49 Cal.App.4th 64, 71.) We therefore review

the trial court’s interpretation of the agreement de novo,

“exercising our independent judgment as to the meaning of the

duration clauses” and other provisions of the agreement. (Id. at

p. 70.) We are guided by well-settled rules of contractual

interpretation.

“All contracts, whether public or private, are to be

interpreted by the same rules.” (Civ. Code, § 1635.) One such

rule provides that “[a] contract must be so interpreted as to give

effect to the mutual intention of the parties as it existed at the

time of contracting, so far as the same is ascertainable and

lawful.” (Id. § 1636.) When a contract is written, “the intention

of the parties is to be ascertained from the writing alone, if

possible.” ( Id. § 1639.) “‘It is the outward expression of the

agreement, rather than a party’s unexpressed intention, which

the court will enforce.’ [Citation.] Thus, in interpreting the

[agreement], we are not concerned as much with what the parties

38

might tell us they meant by the words they used as with how a

reasonable person would interpret those words.” (Quantification

Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 798.)

“The words of a contract are to be understood in their ordinary

and popular sense, rather than according to their strict legal

meaning; unless used by the parties in a technical sense, or

unless a special meaning is given to them by usage, in which case

the latter must be followed.” (Civ. Code, § 1644.)

“Of equal importance is the rule that ‘“[a] contract must

receive such an interpretation as will make it lawful, operative,

definite, reasonable, and capable of being carried into effect, if it

can be done without violating the intention of the parties.” (Civ.

Code, § 1643; see also id., § 3541.) Pursuant to this rule, we will

not construe a contract in a manner that will render it unlawful if

it reasonably can be construed in a manner which will uphold its

validity.’ [Citation.]” (Quantification Settlement Agreement

Cases, supra, 201 Cal.App.4th at p. 798.) A contract is unlawful

if it is “[c]ontrary to an express provision of law.” (Civ. Code,

§ 1667.) Unlawful contracts are considered void. (Civ. Code,

§§ 1598, 1599.)

2. Analysis

The original written agreement between Regency and

Pomona demonstrates that the parties intended the agreement to

terminate after a period of 20 years, “unless such term is

otherwise terminated, modified or extended by circumstances set

forth in this Agreement or by mutual consent of the parties.” “It

is the general rule that when a contract specifies its duration, it

terminates on the expiration of such period.” (Beatty Safway

Scaffold, Inc. v. Skrable (1960) 180 Cal.App.2d 650, 654; see also

1 Witkin, Summary of Cal. Law (11th ed. 2018 update) Contracts,

39

§ 954.) A contract that is terminated ceases to bind the parties.

A terminated contract cannot be extended or modified; both

extension and modification as those terms are commonly

understood presuppose the existence of a valid contract to extend

or modify. An “extension” is “[t]he continuation of the same

contract for a specified period.” (Black’s Law Dict. (10th ed. 2014)

p. 703, col. 1.) A “modification” is “[a] change to something; an

alteration or amendment.” (Id. at p. 1156, col. 2.)

Here, the 1993 agreement terminated by its terms on June

24, 2014. After that point, there was no valid contract to amend,

modify, or extend. Pomona contends this conclusion cannot stand

because it was contrary to its and Regency’s intent. Pomona thus

appears to suggest that their intent and conduct stemming

therefrom created an implied-in-fact contract. (See Civ. Code,

§ 1621; Retired Employees Assn. of Orange County, Inc. v. County

of Orange (2011) 52 Cal.4th 1171, 1178 [“a contract implied in

fact ‘consists of obligations arising from a mutual agreement and

intent to promise where the agreement and promise have not

been expressed in words’”].) It is possible for a public contract to

be implied in fact; “[a]ll contracts, whether public or private, are

to be interpreted by the same rules.” (Civ. Code, § 1635; see also

M.F. Kemper Construction Co. v. City of Los Angeles (1951) 37

Cal.2d 696, 704 [“The California cases uniformly refuse to apply

special rules of law simply because a governmental body is party

to a contract.”].) The existence and scope of implied-in-fact

contracts are determined by the totality of the circumstances.

(Faigin v. Signature Group Holdings, Inc. (2012) 211 Cal.App.4th

726, 739.) “The question whether such an implied-in-fact

agreement exists is a factual question for the trier of fact unless

the undisputed facts can support only one reasonable conclusion.

40

(Ibid.) ”

The undisputed facts here can support only one reasonable

conclusion: that Pomona and Regency did not have an impliedin-fact

contract. Regency recognized, as early as 2010, that any

amendment or extension of the 1993 agreement would need to be

processed through public channels and reduced to writing. The

record demonstrates that Regency and Pomona recognized

throughout their negotiations the need to comply with public

notice, publication, and city council procedures. As the trial court

recognized, those procedures include a requirement that

ordinances adopting contracts be introduced on a first read and

then “not be passed within five days of their introduction, nor at

other than a regular meeting or at an adjourned regular

meeting.” (Gov. Code, § 36934.) They also require an express

agreement between the parties, negating any notion that Pomona

and Regency intended to extend the agreement solely by virtue of

their conduct.

Pomona also contends the court erred by interpreting the

agreement in such a way as to render it unlawful. The general

rule indeed is that a contract should not be construed in a

manner that will render it unlawful, “if it reasonably can be

construed in a manner which will uphold its validity.”

(Quantification Settlement Agreement Cases, supra, 201

Cal.App.4th at p. 798, emphasis added.) Here, there is no

reasonable way to construe the belatedly adopted July 7, 2014

written agreement as an amendment to or extension of the

original agreement, which by its terms had terminated. Pomona

did not, as it argues, have “discretion to enter into an extension of

the development agreement, regardless of when the second read

was completed.” It faced explicit contractual time limits, which

41

elapsed before the city council adopted Ordinance No. 4190. We

find it telling that Pomona does not dispute that a new

agreement would violate the provisions of Prop. L; instead, it

argues only that the court should have interpreted the agreement

as an extension or amendment. Such an interpretation is not

supported by the facts of this case.

IV. Attorney’s Fees

The trial court awarded plaintiffs $75,200.40 in attorney’s

fees under section 1021.5. Pomona contends the award was

improper because the trial court did not consider whether

plaintiffs vindicated an important public interest, erred in

finding that the litigation conferred a significant benefit on the

public, and erred in finding that plaintiffs demonstrated the

requisite necessity and financial burden of public enforcement.

We affirm.

A. Legal Principles

Section 1021.5 provides, in relevant part, “Upon motion, a

court may award attorneys’ fees to a successful party against one

or more opposing parties in any action which has resulted in the

enforcement of an important right affecting the public interest if:

(a) a significant benefit, whether pecuniary or nonpecuniary, has

been conferred on the general public or a large class of persons,

(b) the necessity and financial burden of private enforcement . . .

are such as to make the award appropriate, and (c) such fees

should not in the interest of justice be paid out of the recovery, if

any.” (§ 1021.5.) The statute “codifies the private attorney

general doctrine and acts as an incentive to pursue ‘“‘publicinterest

litigation that might otherwise have been too costly to

bring.’”’ [Citation.]” (Hall v. Department of Motor Vehicles (2018)

26 Cal.App.5th 182, 188.) To obtain fees thereunder, the moving

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party must establish “(1) he or she is a ‘successful party,’ (2) the

action has resulted in the enforcement of an important right

affecting the public interest, (3) the action has conferred a

significant benefit on the public or a large class of persons, and

(4) an attorney fees award is appropriate in light of the necessity

and financial burden of private enforcement.” (Ibid.)

“We review an attorney fee award under section 1021.5

generally for abuse of discretion. Whether the statutory

requirements have been satisfied so as to justify a fee award is a

question committed to the sound discretion of the trial court,

unless the question turns on statutory construction, which we

review de novo.” (Collins v. City of Los Angeles (2012) 205

Cal.App.4th 140, 152 (Collins).) Under the abuse of discretion

standard, we presume the trial court properly applied the law

and acted within its discretion unless the appellant affirmatively

shows otherwise. (Ibid.)

B. Analysis

1. “Important public interest” and

“significant benefit”

Pomona contends that the trial court failed to consider the

importance of the public interest plaintiffs “claim to have

vindicated by invalidating the Third Amendment.” Quoting

Woodland Hills Residents Assn., Inc. v. City Council (1979) 23

Cal.3d 917, 938 (Woodland Hills), Pomona argues that the trial

court was obliged to “realistically assess the litigation and

determine, from a practical perspective, whether or not the action

served to vindicate an important right so as to justify an attorney

fee award under a private attorney general theory.” Pomona

similarly argues that the trial court failed to properly evaluate

the significance of the benefit to the public of the litigation. It

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contends the court relied on “mere enforcement of a statutory

enactment,” which Woodland Hills “expressly disavowed” as a

sufficient basis for awarding fees.

In Woodland Hills, the plaintiffs prevailed on a procedural

rather than substantive basis and sought attorney’s fees under

section 1021.5. (See Woodland Hills, supra, 23 Cal.3d at p. 937.)

The defendant argued that fees were unwarranted because

ensuring a defendant complies with procedural requirements

“does not rise to the level of an ‘important right’ for purposes of

section 1021.5.” (Ibid.) The Supreme Court rejected that

contention, holding that “the fact that a plaintiff is able to win his

case on a ‘preliminary’ issue, thereby obviating the adjudication

of a theoretically more ‘important’ right, should not necessarily

foreclose the plaintiff from obtaining attorney fees under a

statutory provision.” (Id. at p. 938.) When a plaintiff prevails on

a preliminary issue, the Court instructed, “the trial court,

utilizing its traditional equitable discretion (now codified in

§ 1021.5), must realistically assess the litigation and determine,

from a practical perspective, whether or not the action served to

vindicate an important right so as to justify an attorney fee

award. . . .” (Ibid.) The Court further held that, because the

public always benefits when statutes are enforced, the trial court

should “determine the significance of the benefit, as well as the

size of the class receiving benefit, from a realistic assessment, in

light of all the pertinent circumstances, of the gains which have

resulted in a particular case.” (Id. at pp. 939-940.)

Here, the first quotation from Woodland Hills is inapposite.

Plaintiffs prevailed on the merits of their petition; the trial court

did not resolve the matter on a technicality or at a preliminary

stage. Moreover, the trial court’s order indicates it did consider

44

the importance of the public interest at stake. The trial court

cited plaintiffs’ papers and noted their argument that “they

vindicated the right to have Proposition L enforced. They point

out that the citizens of Pomona were seriously concerned about

the proliferation of billboards in Pomona and wanted to make

sure they had a voice in the approval of any future billboards and

that the City Council completely ignored Proposition L.” The

trial court subsequently stated its conclusion that it “agrees with

Plaintiffs that effectuating the voters’ right to enforce Proposition

L conferred a significant benefit on the general public.” This

discussion shows that the trial court identified the public interest

and evaluated its importance.

It also demonstrates that the trial court appropriately

assessed the significance of the benefit. The entire citizenry of

Pomona, which passed Prop. L in the wake of the 1993

agreement, benefited from the enforcement of Prop. L. The trial

court found persuasive plaintiffs’ argument that “‘the citizens of

Pomona were seriously concerned about the proliferation of

billboards in Pomona’” and concluded that ensuring that no

additional billboards were erected in the city was a significant

benefit to this sizeable class of persons. Pomona has not

persuaded us that the trial court erred in finding the benefit

gained was significant and widespread.

2. “Necessity and financial burden”

“The necessity and financial burden requirement

encompasses two issues: ‘“‘whether private enforcement was

necessary and whether the financial burden of private

enforcement warrants subsidizing the successful party’s

attorneys.’” [Citation.]’ [Citation.]” (Collins, supra, 205

Cal.App.4th at p. 154.) “Private enforcement is necessary only if

45

public enforcement of the ‘important right affecting the public

interest’ (§ 1021.5) at issue is inadequate.” (Ibid.) The financial

burden of private enforcement includes both the costs of litigation

and any financial benefits reasonably expected by the successful

party. (Ibid.) “The appropriate inquiry is whether the financial

burden of the plaintiff’s legal victor outweighs the plaintiff’s

personal financial interest. [Citations.] An attorney fee award

under section 1021.5 is proper unless the plaintiff’s reasonably

expected financial benefits exceed by a substantial margin the

plaintiff’s actual litigation costs.” (Ibid.)

Pomona contends the trial court “erred in failing to hold

[Plaintiffs] to their burden to establish that there was a necessity

of private enforcement.” It argues that plaintiffs merely

“proffered . . . a self-serving statement . . . unsupported by any

facts,” that the city council ignored Prop. L, which was too

“nonspecific and conclusory” to support the award. We disagree.

The trial court had not only the assertion of plaintiffs’ attorney

that Pomona failed to comply with Prop. L, but also an entire

administrative record demonstrating the city’s awareness that

the 1993 agreement was expiring, that the billboards had to be

removed by its expiration date, and that Prop. L could bar the

alteration or relocation of the billboards covered under the

agreement. Indeed, the court stated it was “persuaded that, in

this case, there was a necessity of private enforcement because

but for this litigation, the City would have renewed the

development agreement.” The record amply supported this

finding.

Pomona also argues that the trial court’s finding that

plaintiff s incurred a financial burden sufficient to warrant fees

“was erroneously predicated on a finding that they did not have a

46

pecuniary interest in the outcome of the litigation.” The trial

court indeed found that “there is no evidence that [Plaintiffs’]

success in this action will cause them to attain any pecuniary

benefit or advantage. The evidence presented by Respondents

demonstrates, at most, that [Plaintiffs] have a history of

litigating similar issues for purposes of harassing competitors.”

The trial court reasoned that section 1021.5 “focuses, however, on

the question whether [Plaintiffs] will achieve a pecuniary

advantage from the litigation, not on whether the litigation will

impose a burden on the Respondent.” Pomona contends this “too

narrowly defined what constitutes a financial benefit,” and that

plaintiffs “created a new bidding opportunity for themselves as

they have created pressure on the City to replace the revenue and

other benefits that it would have otherwise received through the

Third Amendment.” In support of this contention, it relies on

Arnold v. California Exposition and State Fair (2004) 125

Cal.App.4th 498 (Arnold). We are not persuaded.

Pomona has not pointed to any evidence in the record

showing that Price or Citizens is a competitor of Regency, is in

the billboard business, or stands to gain from the cancellation of

Regency’s contract. Even if Price or Citizens did compete with

Regency, they too would be subject to the strictures of Prop. L

and thus unable to financially benefit from the enforcement of

the provision. 7 This is in contrast to Arnold, in which the

plaintiff, who previously operated a harness racing operation at

the California Exposition, successfully sued to vacate agreements



7Pomona asserts, accurately, that plaintiffs were working

to pass a ballot initiative amending Prop. L to expand the eligible

display zones and allow the construction of new billboards. This

is of no moment, as their efforts were unsuccessful.

47

California Exposition had entered with one of his competitors.

(See Arnold, supra, 125 Cal.App.4th at p. 511.) The court found

that it was “no stretch to say the record shows Arnold was

chomping at the bit to again run the Cal Expo harness racing

operation. On several occasions over a significant period of time,

he informed Cal Expo that he would provide it with hundreds of

thousands of additional revenue dollars if he were awarded the

harness racing contract. Arnold was quite specific about these

amounts and intent.” (Ibid.) Therefore, the court concluded, it

was not an abuse of discretion for the trial court to find that “his

financial interest in the harness racing contract was specific,

concrete and significant, and based on objective evidence.” (Ibid.)

There is no such objective evidence of Price’s or Citizens’s intent

to benefit from the lawsuit here. The trial court did not err in

finding that neither stood to gain from the suit.

V. Sanctions

Respondents filed a motion for sanctions on appeal,

alleging that Pomona brought this appeal solely for purposes of

delay. Respondents sought sanctions in the “minimum” amount

of “$200,000.00 as a one month estimate of the revenue” Regency

earned while operating its billboards.

Whether to impose appellate sanctions is a matter within

our discretion. (Winick Corp. v. County Sanitation Dist. No. 2

(1986) 185 Cal.App.3d 1170, 1181-1182.) Under section 907 and

California Rules of Court, rule 8.276(a)(1), we may award

sanctions when an appeal is frivolous and taken solely to cause

delay. “[A]n appeal should be held to be frivolous only when it is

prosecuted for an improper motive—to harass the respondent or

delay the effect of an adverse judgment—or when it indisputably

has no merit—when any reasonable attorney would agree that

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the appeal is totally and completely without merit. [Citation.]”

(In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) “The two

standards are often used together, with one providing evidence of

the other. Thus, the total lack of merit of an appeal is viewed as

evidence that appellant must have intended it only for delay.”

(Id. at p. 649.)

Sanctions are not warranted in this case. The issues

Pomona identified and pursued in this appeal were arguable and

not frivolous. Moreover, plaintiffs’ request for $200,000 has no

basis in the record. The motion accordingly is denied.

The judgment and order of the trial court are affirmed. Respondents’ motion for sanctions is denied. Respondents are awarded their costs on appeal.